FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 14, 2012

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On December 6, 2011, the Commission received from Fox Ridge Stone Co., LLC (“Fox Ridge”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

            On March 16, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show Cause which by its terms became a Default Order if the operator did not file an answer within 30 days. This Order to Show Cause was issued in response to Fox Ridge’s failure to answer the Secretary’s February 9, 2010 Petition for Assessment of Civil Penalty. The record in this docket does not show a response from the operator.

            The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final decision of the Commission.

            In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

            Fox Ridge asserts that it contested the penalty assessment on December 21, 2009, and stated that the remaining penalties from this mine inspection were contested on November 24, 2009, and assigned docket No. LAKE 2010-187-M. Fox Ridge enclosed copies of these letters.

            The Secretary opposes the request to reopen and notes that the operator fails to establish exceptional circumstances that warrant reopening. The Secretary states that Fox Ridge did not answer the penalty petition, nor the Show Cause Order. MSHA sent Fox Ridge a delinquency notice on August 19, 2011, and the case was referred to the Department of Treasury for collection on October 13, 2011. The Secretary further states that Fox Ridge does not explain why it failed to acknowledge or answer any of these documents, although they were mailed to its address of record.

            Review of the record in Docket No. LAKE 2010-285-M, the docket at issue here, together with the Commission’s file in Docket No. LAKE 2010-187-M reveals that Fox Ridge timely contested all of the proposed assessments arising out of an MSHA inspection on September 16-17, 2009. The proposed assessments were contained in two separate dockets, with 28 citations assigned to Docket No. LAKE 2010-187-M and one citation, which was the subject of a Special Assessment, assigned to Docket No. LAKE 2010-285-M. Fox Ridge failed to respond to the Secretary’s Petitions for Assessment of Civil Penalty in either docket. On March 16, 2011, Chief Judge Lesnick issued separate (but identical except for the docket numbers) Orders to Show Cause in both dockets. On March 24, 2011, Fox Ridge sent a letter to the Commission responding to the Order to Show Cause, and explaining Fox Ridge’s reasons for disagreeing with the citations and penalties. It appears that Fox Ridge intended that its March 24, 2011 letter (which had no docket number written on it) constitute a response to the Order to Show Cause in Docket No. LAKE 2010-285-M, as well as LAKE 2010-187-M.

            Having reviewed Fox Ridge’s request and the Secretary’s response, in the interests of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.